Land and Environment Court New South Wales Medium Neutral Citation: AMH Subsidiary Pty Ltd v Strathfield Municipal Council [2023] NSWLEC 1225 Hearing dates: Conciliation conference on 2 February 2023 Date of orders: 18 May 2023 Decision date: 18 May 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The Applicant is granted leave to modify the development consent DA2017/21/6 granted by the Land and Environment Court and rely upon the Amended Plans and documents referred to at Condition 1 to Annexure A. (2) The Applicant's Class 1 appeal is upheld. (3) Development Consent is granted to modify the consent to Development Application DA2017/21/6, so as to permit various design modifications to the approved townhouse development, at premises known as 14-26 Telopea Avenue, Homebush West, subject to the conditions contained at Annexure A. Catchwords: MODIFICATION APPLICATION –– modifications to approved development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.56, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Strathfield Local Environmental Plan 2012 cll 1.2, 4.3, 4.4 Category: Principal judgment Parties: AMH Subsidiary Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: V Conomos (Solicitor)(Applicant) M Mallos (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Strathfield Municipal Council (Respondent) File Number(s): 2022/318698 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application No. DA2017/21/6 (the Modification Application) by Strathfield Municipal Council (the Council). In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The development, the subject of these proceedings, is the Respondent's deemed refusal of Modification Application No. DA2017/21/6 to modify development consent DA2017/21/6, so as to permit various design modifications to the approved townhouse development. 3. The Modification Application was notified and advertised from 22 December 2022 to 25 January 2023. During this time, no submissions were received. 4. For the purpose of s 4.56 of the EPA Act, the parties agree that the further amendments made to the plans, giving rise to the s 34 agreement, provide for the proposal as sought to be approved being substantially the same as the original approval. I am satisfied that the development as modified will be substantially the same development as the development for which consent was originally granted. In this regard, the development as proposed to be modified remains as a townhouse development addressing Telopea Avenue with four dwellings addressing the southern (east-west) part of Telopea Avenue and the remainder of townhouses addressing the northern (north-south aligned) section of Telopea Avenue. The primary vehicular access remains unchanged. Vehicles will access the lower ground/basement from the south-eastern corner of the site. The development remains fundamentally the same in type, use and general arrangement. Each townhouse is still oriented towards and addresses the street and each has landscaped open space at the front and also open space at the rear. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 February 2023 and at which I presided. 6. During the s 34 conference, the parties considered amended plans and material that now resolves the Council's Contentions. The Council, as the relevant consent authority has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A. 7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 March 2023. 8. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. 10. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 11. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [12] to [14] below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Strathfield Local Environmental Plan 2012 (SLEP) are: Strathfield Local Environmental Plan 2012 (SLEP) 1. The Land is zoned R3 – Medium Density Residential, pursuant to the SLEP. Development for the purposes of multi dwelling housing is permitted within this zone with development consent. 2. Desired Future Character (cl 1.2): I am satisfied from the evidence that the Applicant's amended Modification Application is consistent with the aims and objects of cl 1.2(2)(a) of the SLEP 2012. 3. Height of Buildings (cl 4.3): The Respondent is satisfied that the Applicant's amended Modification Application provides sufficient information and complies with the maximum Height of Buildings requirement in cl 4.3 of the SLEP 2012. I am also satisfied from the evidence that the height standard is complied with. 4. Floor Space Ratio (cl 4.4): I am satisfied from the evidence that the Applicant's amended Modification Application is consistent with the objectives of the FSR development standard at cl 4.4 of the SLEP 2012. 5. Public Interest: I am satisfied that the Applicant's amended application is consistent with the objectives of the R3 Medium Density Residential Zone, and is in the public interest. 6. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. The Site is currently being developed for residential purposes (townhouses) and I am satisfied from the evidence it is not contaminated and does not adjoin land known to be contaminated. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) 1. Pursuant to SEPP BASIX and the Environmental Planning and Assessment Regulation 2021, the proposal is a BASIX affected development, containing a BASIX affected building. An updated BASIX has been prepared reflecting the updated Architectural Plans. Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that the parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the LEC Act, as to a decision that the Court could have made in the proper exercise of its functions. Notes 1. The Court notes: 1. Strathfield Municipal Council, the Respondent, as the relevant consent authority has agreed, under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA2017/21/6 in accordance with the amended plans referred to at Condition 1 of Annexure A. 2. A copy of the updated material, the subject of the s 34 agreement, was provided to the court on 21 March 2023. Orders 1. The Court orders: 1. The Applicant is granted leave to modify the development consent DA2017/21/6 granted by the Land and Environment Court and rely upon the Amended Plans and documents referred to at Condition 1 to Annexure "A". 2. The Applicant's Class 1 appeal is upheld. 3. Development Consent is granted to modify the consent to Development Application DA2017/21/6, so as to permit various design modifications to the approved townhouse development, at premises known as 14-26 Telopea Avenue, Homebush West, subject to the conditions contained at Annexure "A". L Sheridan Acting Commissioner of the Court Annexure A ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2023